from the throwing-a-shoulder-into-the-government dept

It appears Washington, DC magistrate judge John Facciola is still making the government earn everything it asks for. Facciola is the judge who has been sending the government back to its desk to rewrite overly broad warrants seeking electronic data. In one of these cases, the government decided that it would rather go "judge shopping" all the way across the country rather than narrow its request, but was shot down by a California district court judge.

Facciola's orders are the basis for two memorandums recently issued by DC District Court Judge Richard Roberts concerning a case still mostly under seal as part of federal grand jury investigation. (The government also asked for these to be filed under seal, but that has obviously been declined.)

The government challenges two orders issued by Magistrate Judge John Facciola regarding the government's application for an order under 18 U.S.C. The first order invited Twitter, Inc. to intervene as a respondent and file a notice with the court on whether Twitter intended to be heard on the merits of the government's application. The second order instructed the government to file a public, redacted copy of its application and draft order.

Facciola also issued a similar order for Yahoo, the other company being subpoenaed. Both sets of orders invited the companies to challenge both the gag order preventing them from informing their customer(s) of the government's interest in their data. The government understandably wasn't thrilled with these orders and filed an appeal (of sorts) seeking to have Facciola's orders vacated. The District Court notes that the judicial system -- at this level -- doesn't exactly work this way.

On March 27, 2014, the government filed what it styled as an appeal from the magistrate judge's two orders regarding the government's application for an order under 18 U.S.C. The government moved to vacate the orders issued by the magistrate judge and moved for the district court to grant its application for a nondisclosure order. In addition, the government moved to seal the appeal and resulting order.

This faux pas by the government is explained a bit further in a footnote, as is the judge's rationale for treating this as an "objection," rather than an "appeal."

The government styles its challenge as an appeal, but the reference is a misnomer. With the exception of authority granted by Federal Rule of Criminal Procedure 58 concerning misdemeanor proceedings handled by a magistrate judge under 18 U.S.C. 3401, the district court does not exercise appellate power. See, United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011) ("The magistrate judge is not an inferior court, and the district court does not stand in an appellate capacity over the magistrate.") For the reasons explained below, the government's appeal will be considered as an objection to the magistrate judge's two orders.

Several more pages of judicial rationale follow, pointing out that grand jury deliberations are not subject to transparency and that Facciola erred by suggesting Twitter and Yahoo could either challenge the gag order or inform their customers. Judge Roberts points out that there's very little either company can offer in terms of judging the "merit" of the government's gag order, or the subpoena itself. Further discussions also defer to "government knows best" mentality, suggesting that any notification would "jeopardize" ongoing investigations. That this investigation is tied to a grand jury slams the door shut on any appeal of the gag order.

Because the express terms of 18 U.S.C. 2705(b) and applicable legal precedent governing public access to grand jury proceedings and materials do not support the first order inviting Twitter [and Yahoo] to intervene or the second order instructing the government to file a public, redacted copy of the non-disclosure application, the orders will be vacated.

So, the government gets its win, but it had to put in a little extra paperwork. It hoped these documents would be sealed as well, but you can't win them all, especially when memos in question contain only one redactable sentence each. If this is how the last few months have gone in Facciola's court, it's little wonder the government has been making road trips to other venues.

Reader Comments

in all honesty, did anyone doubt they would get what they wanted? how many judges/courts are stopping the government from doing exactly what it wants, through the courts or bypassing them, legal or not (using the terms loosely).

It's ridiculous that these gag orders are indefinite. They should come with term limits - say 1-5 years max. In 99.99 percent of the cases, even terrorism involving cases, there's no reason why you'd need more than that. But the governments just likes to give itself unlimited powers.

What an amazing mess of tortured reasoning by the District Court here.

By my reading they openly state that they do not have appellate power over the magistrate court (in a footnote), meaning no authority to overrule the magistrate courts decisions.

Thus the District Court will treat the matter as an objection instead, meaning that the magistrate judge would either sustain or deny the objection and the objection would be preserved for later appeal the District Court just said it had no authority to do here.

Then the District Court proceeds to categorize the magistrate judges ruling as an "additional duty" subject to a de novo review by the District Court, a process known as an *appeal*, and overrules the magistrate court claiming precedent contrary to what it just said it lacked jurisdiction to do.

How is this anything but the District Court seeking any loophole in the law it can find to circumvent rules it is bound by to get the outcome the government wants?

How can a defendant be subject to a subpoena they are not even allowed to know has even been issued in a Grand Jury proceeding whose purpose is to determine if there is enough probable cause against the defendant to charge them with a crime in the first place? That is, without the subpoena would they have the probable cause necessary for a search under the fourth amendment?

How is this Grand Jury process not a clear violation of the unwitting defendant's fourth amendment rights?